Re: [gnso-vi-feb10] Law, Policing and Punishment aka compliance proposal, aka WIP draft collection

[Carlton Samuels <carlton.samuels@xxxxxxxxx>]

I endorse the first 2 paras without reservation; they mirror my own sense of
a rational process.

Carlton Samuels

==============================
Carlton A Samuels
Mobile: 876-818-1799
Strategy, Planning, Governance, Assessment & Turnaround
=============================


On Tue, Jun 22, 2010 at 3:01 PM, Volker Greimann
<vgreimann@xxxxxxxxxxxxxxx>wrote:

>
> Maybe we can try to approach the issue another way, by focussing on the one
> issue most of us can agree upon: Compliance.
>
> Most of us can from what I see from discussions over the previous days with
> everyone I had the opportunity to steal a little time from, we so far agree
> that he most important issue is compliance and enforcement. We need a strong
> and well defined body of law (contract), a competent police force
> (compliance control team) and a tiered penalty system. Once we can agree on
> terms of such a system ownership or control percentages will become
> irrelevant. For many proponents, the topic of compliance seems to be the
> driving motive behind their desire to implement control limits even though
> many of the harms are entirely unrelated to VI and CO and can just as likely
> occur in scenarios of 0 % CO/VI.
>
> I will only list the basic premise we all add to and therefore clearly mark
> the following as:
>
>
> WORK IN PROGRESS
>
>
> THE LAW:
>
> To draw up the law, a codex of rules that applies to every contracted
> partner, from registry to RSP we first need to clearly define the harms we
> intend to prevent and the behavior patterns we believe to be undesirable.
> Extrapolating from these, our lawyer team-members, myself included, can
> adapt the contractual body to combat the harms more effectively than any
> ownership limitation could.
>
> Pilfering shamelessly from the “back-room proposal”, a separate contract of
> RSPs will have to be put in place clearly defining the roles and obligations
> of such service providers, as all parties need to be contractually bound by
> ICANN to allow policing.
>
> Rather than focussing on separation percentages, let us focus in the text
> of the law on what we want to achieve/prevent and cast that into a text of
> rules. The contracts will of course require an inclusion option to allow
> revision after a reasonable time of review to either reduce or increase
> requirements.
>
> As not all registries are created equally, we may want to considered a
> tiered system of application requirements, based on market power of the
> created or owning entity, as well as the designated purpose of the TLDS. For
> example, a SRSU TLD will need less stringent initial requirements than other
> x-owned entities.
>
>
> POLICE FORCE:
>
> From our meetings I have gathered that many believe that establishing an
> effective police force is the biggest problem. ICANN enforcement today is
> underfunded and understaffed. So we need to make sure that we hold Rod to
> his words given in this weeks introductory speech. Whatever we design, ICANN
> must put in place (and finance). The funds are there, but we will need to
> convince the board that they will have to dip into the sacred fund to put a
> compliance enforcement team worthy of its name in place. I agree with
> pessimists that will claim such a suggestion is impossible to get, but
> hearing various comments from the board and having the strong impression
> that ICANN staff can be persuaded that the exchange of cash for success of
> the program is possible, we need to hammer staff in the coming days with the
> unified demand of this WG: set aside some of the money currently sitting in
> the bank for a strong and competent enforcement team. This is heavy-duty
> lobbying, but united we can, nay, must do it.
>
> As we all think that enforcement is lacking this needs to be done in either
> case, no matter what proposal you favor.
>
>
> PENALTIES:
>
> As placeholder for further discussion, I am basing the penalty system on
> criminal justice systems:
>
> Tier 0: Notice and warning: Small fine for minor violation
>
> Tier 1: Fiscal penalty: Minor violations not fixed after notice period
> carrying a pecuniary penalty substantial enough to discourage active intent
> by nullifying all ill-gotten gains.
>
> Tier 2: Doing Time: Repeated minor violations or more substantial
> violations reducing the available contingent for registrations to a
> percentage of the average over the past 12 months
>
> Tier 3: Hard time: Temporary suspension of registration activity,
> possibility of cancellation of contract for RSP, prohibition of carrying TLD
> for registrar in case of severe breach of contract.
>
> Tier 4: Death penalty: Permanent Suspension of entity from service,
> redelegation of all TLDs under management/deaccreditation for active
> intentional misconduct, repeated major breach of contract.
>
> Other penalties may include but are not limited to obligatory audits,
> higher fees and more.
>
> I invite everyone to review these ideas, and consider what to improve,
> change, adapt or reject (and why). I welcome all constructive criticism
> unless you are only interested in protecting your own market share by
> disallowing competition.
>
>
> --
>
> Fur Ruckfragen stehen wir Ihnen gerne zur Verfugung.
>
> Mit freundlichen Grusen,
>
> Volker A. Greimann
> - Rechtsabteilung -
>
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> --
>
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>
> Best regards,
>
> Volker A. Greimann
> - legal department -
>
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